Paul Eischen, et al. v. Wayne Township and Wayne Township Volunteer Fire Department

[1.] In connection with a suit claim, stemming from a November 10, 1998 fire at their residence, plaintiffs Paul, Sharon, Jim, John and Eric Eischen (collectively "Eischens") filed a negligence claim against defendants, Wayne Township Volunteer Fire Department (the "Volunteer Fire Department") and Wayne Township (defendants hereafter collectively, the "Township"), on November 9, 2001. On July 21, 2003, the Township filed a motion for summary judgment in the South Dakota Second Judicial Circuit Court. On December 9, 2003, the circuit court entered its order granting partial summary judgment. On August 3, 2005, the Township filed a motion to dismiss for failure to prosecute pursuant to SDCL 15-6-41(b). The circuit court granted the motion and entered its judgment of dismissal on September 7, 2005.

[2.] On November 7, 2005, Eischens served notice of appeal of the circuit court's order granting partial summary judgment and the final judgment of dismissal. On October 3, 2006, this Court heard oral arguments on Eischens' appeal. On November 3, 2006, we dismissed Eischens' appeal of the circuit court's grant of partial summary judgment as not reviewable under SDCL 15-26A-3 and ordered that on the issue of dismissal the case be reversed and remanded to the circuit court for entry of findings of fact and conclusions of law pursuant to SDCL 15-6-41(b).
[3.] On January 8, 2007, the circuit court entered judgment of dismissal with findings of fact and conclusions of law. We affirm.

FACTS AND PROCEDURE

[4.] The events surrounding this case began with a fire at Eischens' residence in rural Minnehaha County, west of Sioux Falls, South Dakota, on the morning of November 10, 1998. The weather was atrocious, essentially developing into blizzard conditions. In spite of the weather, which delayed the response time of the Volunteer Fire Department, Eischens claimed they were gaining some control over the fire on their own, prior to the arrival of the firefighters. After the Volunteer Fire Department arrived, one mishap after another plagued the firefighters' efforts with the upshot being that the fire grew into an all-consuming inferno that destroyed Eischens' home and all of their personal property therein.

[5.] The record reflects the following activity in this case, almost entirely initiated by the Township:

1. October 18, 2001: Eischens serve Township with summons and complaint for negligence seeking damages in connection with the loss of their home and personal property. The complaint was filed on November 9, 2001.

2. November 1, 2001: Township serves answers and first set of interrogatories and requests production of documents.

3. January 31, 2002: Eischens serve answers to interrogatories.

4. February 6, 2002: Defense counsel's letter to plaintiffs' counsel requesting Eischens' depositions and identity of persons that plaintiffs' counsel wants to depose.

5. March 4, 2002: Defense counsel's letter to plaintiffs' counsel following up on February 6, request for Eischens' depositions.

6. March 27, 2002: Defense counsel's letter to plaintiffs' counsel with motion for scheduling order and follow-up request for identity of persons that plaintiffs' counsel wants to depose.

7. March 28, 2002: Defense counsel's letter to plaintiffs' counsel confirming March 28 telephone call from plaintiffs' counsel during
which depositions of Paul Eischen and plaintiffs' expert Terry Steenholdt were scheduled for April 25, 2002. Letter includes follow-up request for persons that plaintiffs' counsel wants to depose and corresponding scheduling request.

8. April 12, 2002: Defense counsel's letter to plaintiffs' counsel with notices of depositions and request for identity of persons that plaintiffs' counsel wants to depose.

9. April 19, 2002: Defense counsel's letter to plaintiffs' counsel regarding depositions and follow-up in reference to identity of persons that plaintiffs' counsel wants to depose.

10. April 24, 2002: Defense counsel's letter to plaintiffs' counsel
regarding depositions.

11. April 24, 2002: Defense counsel's letter to plaintiffs' counsel
regarding rescheduling of depositions following plaintiffs'
counsel's notification that a plaintiffs' expert, Steenholdt,
would not be available.

12. April 29, 2002: Defense counsel's letter to plaintiffs' counsel
requesting follow-up on tentatively rescheduled depositions for
May 1, 2002.

13. May 1, 2002: Defense counsel's letter to plaintiffs' counsel
discussing potential subpoena for Steenholdt.

14. May 9, 2002: Defense counsel's letter to plaintiffs' counsel
requesting follow-up on tentatively rescheduled depositions for
May 14, 2002.

15. May 13, 2002: Defense counsel's letter to plaintiffs' counsel
with proposed stipulation for entry of deposition scheduling
order and request for disclosure of experts.

16. June 11, 2002: Defense counsel's letter to plaintiffs' counsel
requesting signature and return of scheduling order sent May
13.

17. June17, 2002: Defense counsel's letter to the circuit court
with stipulated scheduling order.

18. June 21, 2002: Entry of stipulated scheduling order, including
June 30 deadline for disclosure of plaintiffs' experts and
October 1 deadline for completion of discovery.

19. June 24, 2002: Defense counsel's letter to plaintiffs' counsel
with notice of entry of scheduling order.

20. June 29, 2002: Plaintiffs' counsel's letter to defense counsel
disclosing plaintiffs' expert, John Woodland.

21. July 1, 2002: Defense counsel's letter to plaintiffs' counsel
requesting deposition schedule for plaintiffs' expert and Paul
Eischen.

22. July 15, 2002: Defense counsel's letter to plaintiffs' counsel
following up on July 1 request for scheduling of depositions.

23. July 24, 2002: Defense counsel's letter to plaintiffs' counsel
confirming July 23 telephone conversation during which
deposition of plaintiffs' expert, Woodland, was tentatively
scheduled for September 6.

24. August 1, 2002: Defense counsel's letter to plaintiffs' counsel
requesting confirmation of deposition tentatively scheduled for
September 6.

25. August 15, 2002: Defense counsel's letter to plaintiffs' counsel
acknowledging August 14 telephone call during which
plaintiffs' counsel confirmed expert's deposition for
September 6.

26. August 23, 2002: Defense counsel's letter to plaintiffs' counsel
regarding time of September 6 deposition.

27. September 3, 2002: Defense counsel's letter to plaintiffs'
counsel confirming telephone call on same day during which
September 6 deposition was scheduled for 12:00 a.m.

28. September 6, 2002: Plaintiffs' expert, Woodland, deposed.

29. September 11, 2002: Defense counsel's letter to plaintiffs'
counsel requesting follow up information from Woodland's
deposition, deposition of Paul Eischen, and disclosure of
identity of persons that plaintiffs' counsel wants to depose.

30. October 8, 2002: Defense counsel's letter to plaintiffs' counsel
following up on items requested in September 11, 2002 letter.

31. October 23, 2002: Defense counsel's letter to plaintiffs'
counsel containing notice of November 12, 2002 deposition of
Paul Eischen, Township's second set of interrogatories and
request for production of documents related to expert's
deposition, and follow-up on items requested in September 11
and October 8 letters.

32. November 11, 2002: Defense counsel's letter to plaintiffs'
counsel confirming November 8 telephone call during which
plaintiffs' counsel informed defense counsel that Paul Eischen
was unavailable for deposition on November 12. Letter
included amended notice of deposition scheduled for
November 27. Letter also renewed request for disclosure of
identity of persons that plaintiffs' counsel wanted to depose.

33. November 27, 2002: Paul Eischen deposed.

34. July 18, 2003: Defense counsel serves notice of motion for
summary judgment along with notice of August 25, 2003
hearing.

35. August 18, 2003: Defense counsel's letter to plaintiffs' counsel
confirming telephone conversation of same day during which
motions hearing was rescheduled until September 15.

36. September 4, 2003: Defense counsel's letter to plaintiffs'
counsel requesting plaintiffs' responsive brief by September 8.

37. September 9, 2003: Plaintiffs' letter to defense counsel
including plaintiffs' affidavits, promise of delivery of responsive
brief same day or by September 10, and request to reschedule
motions hearing.

38. September 10, 2003: Second amended notice of hearing
motion for summary judgment. Hearing rescheduled to
September 29, 2003.

39. September 15, 2003: Defense counsel's letter to plaintiffs'
counsel renewing request for delivery of plaintiffs' responsive
brief.

40. September 23, 2003: Defense counsel's letter to plaintiffs'
counsel noting that responsive brief has still not been delivered
and setting out chronology of delay dating back to first
postponement of motions hearing in August 2003.

41. September 26, 2003: Plaintiffs' counsel's letter to defense
counsel with motions for extension of time to complete
responsive brief and for postponement of motions hearing.

42. September 29, 2003: Defense counsel's letter to plaintiffs'
counsel with copy of proposed order of continuance.

43. October 8, 2003: Order of continuance entered with hearing
on motion for summary judgment rescheduled to November 12,
2003.

44. October 10, 2003: Defense counsel's letter to plaintiffs'
counsel with notice of entry of order of continuance.

45. October 24, 2003: Plaintiffs' counsel's letter to defense counsel
with plaintiffs' responsive brief.

46. October 28, 2003: Defense counsel's letter to plaintiffs'
counsel with transcription of 911 tape.

47. October 29, 2003: Defense counsel's letter to plaintiffs'
counsel regarding 911 tape.

48. November 12, 2003: Hearing on motion for summary
judgment.

49. December 2, 2003: Circuit court's letter opinion granting
partial summary judgment.1

50. December 4, 2003: Defense counsel's letter to plaintiffs'
counsel with copy of order for partial grant of motion for
summary judgment.

51. December 12, 2003: Defense counsel's letter to plaintiffs'
counsel with notice of entry of order.

52. February 3, 2004: Plaintiffs' counsel's letter to defense counsel
with demand for $150,000.00.

53. February 17, 2004: Defense counsel's letter to plaintiffs'
counsel rejecting demand and notifying intent to file motion for
trial.

1. The circuit court granted the Township's motion for summary judgment on three issues relevant to the Township's response to the fire that the court determined invoked sovereign immunity. The circuit court denied the Township's motion for summary judgment on two issues that the court determined did not invoke sovereign immunity.

54. February 17, 2004: Defense counsel files motion for trial.

55. March 19, 2004: Defense counsel's letter to plaintiffs' counsel
following up on earlier discussions and plaintiffs' counsel's
promise to respond by week of March 8 on defense counsel's
request to bifurcate liability issue from damages.

[6.] After March 2004 and through August 2005, despite repeated attempts by defense counsel to communicate with plaintiffs' counsel regarding their demand and the scheduling of a trial date, the Township received no response from Eischens or plaintiffs' counsel. On August 4, 2005, six years and nine months after the fire, three years and nine months after Eischens filed suit, and 18 months after Eischens' last action on the case, the Township moved for dismissal for failure to prosecute pursuant to SDCL 15-6-41(b). The hearing on the motion to dismiss was scheduled for August 30, 2005.

[7.] On August 26, 2005, plaintiffs' attorney, A.J. Wassom, filed an affidavit stating that he had been diagnosed with prostate cancer in January 2004 and had undergone treatment.2 On August 29, 2005, plaintiffs' attorney Richard L. Johnson filed an affidavit stating that on December 31, 2004, he and attorney Wassom met with a prospective expert witness in regard to Eischens' claim. At the August 30, 2005 hearing, based on the evidence of the history of inactivity on the part of Eischens, the circuit court granted the Township's motion to dismiss for
failure to prosecute. On September 7, 2005, the circuit court entered judgment of dismissal on the merits without findings of fact and conclusions of law.

[8.] On November 7, 2005, Eischens served notice of appeal of the circuit court's orders granting partial summary judgment and dismissal for failure to prosecute. This Court heard oral arguments and, on November 3, 2006, dismissed Eischens' appeal of the circuit court's order granting partial summary judgment since it was not reviewable as a final order, as required under SDCL 15-26A-3, since it was not a final judgment as to all issues of fact and law on the motion. See Action Carrier, Inc. v. United Nat. Ins. Co., 2005 SD 57, 25, 697 NW2d 387, 393; Davis v. Farmland Mut. Ins. Co., 2003 SD 111, 10, 669 NW2d 713, 717. However, on the issue of the dismissal pursuant to SDCL 15-6-41(b), we remanded the case to the circuit court for entry of findings of fact and conclusions of law.3 On January 8, 2007, the circuit court entered its order of dismissal for failure to prosecute along with the judgment and findings of fact and conclusions of law.

[9.] Eischens appeal raising two issues:

1. Whether the circuit court abused its discretion by
granting the Township's motion to dismiss for failure
to prosecute.

3. SDCL 15-6-41(b) provides in pertinent part:

For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. . . . If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in § 15-6-52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section . . . operates as an adjudication upon the merits.
(Emphasis added).

2. Whether the circuit court erred in granting partial
summary judgment against Eischens based on
sovereign immunity.

STANDARD OF REVIEW

[10.] We review the circuit court's findings of fact under the clearly erroneous standard, while we apply the de novo standard when reviewing its conclusions of law. Vander Heide v. Boke Ranch, Inc., 2007 SD 69, 17, 736 NW2d 824, 831 (citing City of Deadwood v. Summit, Inc., 2000 SD 29, 9, 607 NW2d 22, 25 (citations omitted)). We review the circuit court's dismissal of a claim for failure to prosecute using the abuse of discretion standard. Jenco, Inc. v. United Fire Group, 2003 SD 79, 7, 666 NW2d 763, 765 (citation omitted); Swenson v. Sanborn County Farmers Union Oil Co., 1999 SD 61, 9, 594 NW2d 339, 342 (citing London v. Adams, 1998 SD 41, 12, 578 NW2d 145, 148; Devitt v. Hayes, 1996 SD 71, 7, 551 NW2d 298, 300 (citing Annett v. American Honda, 1996 SD 58, 12, 548 NW2d 798, 802; Opp v. Nieuwsma, 458 NW2d 352, 356 (SD 1990); Du-Al Mfg. Co., v. Sioux Falls Constr. Co., 444 NW2d 55, 56 (SD 1989); Schwartzle v. Austin Co., 429 NW2d 69, 71 (SD 1988); Holmoe v. Reuss, 403 NW2d 30, 31 (SD 1987); Duncan v. Pennington County Hous. Auth., 382 NW2d 425, 426 (SD 1986))). When the decision "is not justified by, and clearly against, reason and evidence," the standard is met and the trial court's dismissal must fail. Swenson, 1999 SD 61, 9, 594 NW2d at 342 (citing London, 1998 SD 41, 12, 578 NW2d at 148; Devitt, 1996 SD 71, 7, 551 NW2d at 300 (citing Dacy v. Gors, 471 NW2d 576, 580 (SD 1991); Herndon v. Herndon, 305 NW2d 917, 918 (SD 1981); Root v. Bingham, 26 SD 118, 120, 128 NW 132, 133 (1910)).

ANALYSIS AND DECISION

[11.] 1. Whether the circuit court abused its discretion
by granting the Township's motion to dismiss for
failure to prosecute.

[12.] Pursuant to SDCL 15-6-41(b), on a defendant's motion, the circuit court may dismiss an action for failure to prosecute or comply with a court order. Swenson, 1999 SD 61, 21, 594 NW2d at 345; see also supra note 3. No requisite period of inactivity is mandated by the statute. SDCL 15-6-41(b). Dismissal is appropriate when the plaintiff's conduct is egregious. Rotenberger v. Burghduff, 2007 SD 7, 17 n6, 727 NW2d 291, 295 n6 (citing Swenson, 1999 SD 61, 21, 594 NW2d at 345 (citing Devitt, 1996 SD 71, 16, 551 NW2d at 301)). A dismissal granted under SDCL 15-6-41(b) operates as dismissal with prejudice as an adjudication on the merits unless the circuit court expressly states otherwise. Id. (citing Fox v. Perpetual Nat. Life Ins. Co., 273 NW2d 166, 168 (SD 1978)).

[13.] We will not ordinarily interfere with the circuit court's ruling in granting or denying motions to dismiss for failure to prosecute. Dakota Cheese, Inc. v. Taylor, 525 NW2d 713, 715 (SD 1995) (citing Duncan, 382 NW2d at 427; Simkins v. Bechtol, 86 SD 187, 189, 192 NW2d 731, 732 (1971)). Being an extreme measure, dismissal for failure to prosecute should only be granted when there is an "unreasonable and unexplained delay."4 Id. (citing Opp, 458 NW2d at 356;

4. Unreasonable and unexplained delays have been defined as those constituting an omission to do something "which the party might do and might reasonably be expected to do towards vindication or enforcement of his rights." Dakota Cheese, Inc, 525 NW2d at 715-16 (quoting Chicago & Northwestern R. Co. v. Bradbury, 80 SD 610, 129 NW2d 540, 542 (1964) (quoting Potts v. Starr, 76 SD 91, 72 NW2d 924, 925 (1955)).

Schwartzle, 429 NW2d at 71; Holmoe, 403 NW2d at 31; Duncan, 382 NW2d at 427; Simkins, 192 NW2d at 732; Chicago & Northwestern R. Co. v. Bradbury, 80 SD 610, 129 NW2d 540, 542 (1964)). "[T]he mere passage of time is not the proper test to determine whether the delay in prosecution warrants dismissal." Id. at 716 (citing Opp, 458 NW2d at 356; Schwartzle, 429 NW2d at 71; Holmoe, 403 NW2d at 31; Duncan, 382 NW2d at 427; Bradbury, 129 NW2d at 542)). It is the plaintiff's responsibility to move the cause of action forward. Id. (citing Du-Al Mfg. Co., 444 NW2d at 56; Schwartzle, 429 NW2d at 71; Duncan, 382 NW2d at 427; Simkins, 192 NW2d at 732). "The defendant need only meet the plaintiff step by step." Id. (citing Holmoe, 403 NW2d at 31)(emphasis added). Dismissal for failure to prosecute should be granted when, in light of all the circumstances, the plaintiff is shown to lack due diligence by failing to proceed with "reasonable promptitude." Id. (citing Opp, 458 NW2d at 356; Holmoe, 403 NW2d at 31-32; Duncan, 382 NW2d at 427; Bradbury, 129 NW2d at 542).

[14.] Eischens argue that dismissal under SDCL 15-6-41(b) was improper because their delay in moving their claim forward was neither unreasonable nor unexplained and as such was not egregious. Moreover, they claim that no court orders were violated. Finally, Eischens aver that even if the delay was unreasonable, unexplained and egregious, dismissal is not warranted because the Township was not prejudiced by their failure to prosecute the cause of action.

[15.] Eischens offer several explanations for why their delay was reasonable. They contend that the period of inactivity in this case was not long enough to substantiate dismissal and that under SDCL 15-6-41(b) three years is
required. Eischens point to one 18-month period of inactivity between February 2004 and August 2005 with shorter periods of inactivity between November 2001, when they filed suit, and February 2004, none of which was longer than the eight months. To support their contention Eischens cite Holmoe, 403 NW2d at 30-31 (reversing circuit court's denial of defendant's motion to dismiss where period of inactivity lasted three years, eleven months); Duncan, 382 NW2d at 426 (affirming dismissal where period of inactivity lasted eight years); Fox, 273 NW2d at 167 (affirming dismissal where period of inactivity lasted three years, nine months); Watkins Products, Inc. v. Lytle, 90 SD 122, 238 NW2d 299, 300 (1976) (affirming dismissal where period of inactivity lasted three years, one month); Potts, 76 SD 91, 72 NW2d at 925 (affirming dismissal where period of inactivity lasted for four years).

[16.] While these cases all resulted in dismissals for failure to prosecute where the periods of delay exceed three years, they offer little else, other than that singular fact, to support Eischens' contention that three years constitutes the figurative yardstick by which all motions to dismiss brought under SDCL 15-6-41(b) must be measured.5 Nowhere in these opinions or in any other opinion have we ever held that three years of inactivity is required before a dismissal can be granted under this statute. To the contrary, we have consistently noted the absence of any
requisite period of inactivity in the provisions of SDCL 15-6-41(b) and that the passage of time alone is not the measure by which motions to dismiss, made under the statute, shall be determined. See Dakota Cheese, Inc., 525 NW2d at 716 (citing Opp, 458 NW2d at 356; Schwartzle, 429 NW2d at 71; Holmoe, 403 NW2d at 31; Duncan, 382 NW2d at 427; Bradbury, 129 NW2d at 542)); see also supra 13. In granting a motion to dismiss under SDCL 15-6-41(b), the circuit court must consider all the facts and circumstances. See Dakota Cheese, Inc., 525 NW2d at 716 (citing Opp, 458 NW2d at 356; Holmoe, 403 NW2d at 31-32; Duncan, 382 NW2d at 427; Bradbury, 129 NW2d at 542); See also supra 13.

[17.] Viewed in this light, Fox offers no support for Eischens since our opinion merely sets out the basis for the plaintiffs' claim without reciting any of the facts of the case other than to state that they "provide[d] no excuse for the unreasonable delay[.]"6 273 NW2d at 167. Although not solely determinative, the issue of prejudice to the defendant through inactivity was considered in affirming the dismissal in Duncan, 382 NW2d at 427, which we will discuss infra 20, is supportive to the Township's position. The facts in Holmoe are not dissimilar to those in the instant case.

[18.] In Holmoe, the incident giving rise to the claim occurred on January 31, 1978. 403 NW2d at 30. The plaintiffs served their summons and complaint on
December 29, 1980. The defendants took depositions from a plaintiff and his doctor respectively in October and December of 1981. There was no more activity on the cause of action until January 1985, when the defendant filed his motion for dismissal for failure to prosecute.

[19.] Comparing Holmoe to the instant case, we find that in both cases approximately three years passed between the incident giving rise to the claim and the date the suit was filed. In both cases it was the defendant who took the initiative in moving litigation forward. And, in both cases, nearly seven years after the incident giving rise to the claim, the defendant moved for dismissal for lack of prosecution. While the plaintiff in Holmoe was wholly inactive during the four-year period preceding the motion to dismiss, Eischens were effectively inactive for a period in excess of three and one-half years.

[20.] After Eischens served the Township with the summons and complaint, in October 2001, there were only two other acts during the ensuing three years and nine months that were wholly initiated by the Eischens – filing the November 9, 2001 complaint and sending the February 3, 2004 demand letter – the latter of which commenced an 18-month period of total inactivity.7 The record, including the voluminous affidavit submitted by defense counsel in support of the motion to dismiss, reveals that it was the Township that consistently attempted to move the litigation forward. Defense counsel sent numerous letters to plaintiffs' counsel, attempting to schedule depositions and hearings or arrange for stipulated
scheduling orders, which garnered no reply. Plaintiffs' counsel repeatedly caused the postponement of hearings or failed to deliver responsive pleadings in a timely manner as agreed. Reviewing the record in this case, it is not unreasonable to conclude that but for the initiative of defense counsel there would have been no activity in this case. See Dakota Cheese, Inc., 525 NW2d at 716 (recognizing that it is the plaintiff's responsibility to move litigation forward) (citing Du-Al Mfg. Co., 444 NW2d at 56; Schwartzle, 429 NW2d at 71; Duncan, 382 NW2d at 427; Simkins, 192 NW2d at 732; Potts, 76 SD 91, 72 NW2d at 925); see also supra 13; see additionally Fox, 273 NW2d at 168 (establishing the principle that in litigation, the a defendant need only meet the plaintiff "step-by-step") (quoting Wiggins v. Washington National Life Insurance Co., 55 CalRptr 129, 133 (1966)).

[21.] The circuit court found that between February 2004 and August 2005, plaintiffs' counsel served no interrogatories or other discovery; scheduled no depositions despite repeated inquiries by the Township; conducted no settlement negotiations nor attempted to schedule the case for trial, and made no contact with defense counsel through any means, including telephone calls, faxes, e-mails or letters.8

[22.] Eischens attempt to explain away their inactivity and lack of initiative in prosecuting their claim by the fact that their "lead" attorney, A. J. Wassom, became debilitated during 2005 by the effects of prostate cancer. While this provides no explanation for the delays and lack of initiative in 2004 and earlier, it might be worthy of some consideration in 2005, but for the revelation that A. J. Wassom was not an active member of the South Dakota Bar as early as July 2003.9 Moreover, by December 31, 2004, his name had been completely removed from the membership role.

[23.] Defense counsel indicated that prior to July 2003, he directed all correspondence to plaintiffs' attorney Richard L. Johnson while Wassom was copied. Thereafter, correspondence were sent to Johnson and only intermittently copied to Wassom. Consistent with Wassom's status, plaintiffs' attorney Johnson conceded at the August 30, 2005 motions hearing: "Most of the documents have been generated – I guess all the documents have generated through my office[.]"

[24.] Accordingly, the circuit court found that Johnson was in fact and had been Eischens' lead attorney as early as July 2003. Essentially conceding responsibility for the inactivity in prosecuting the claim, Johnson also stated at the August 30, 2005 hearing: "I could say that, yes, I have had a lot of trials and hearings and various things but that really isn't an excuse either."
constitute diligence in the prosecution of a claim without contacting the opposing party).

[25.] In attempting to establish a three-year requisite period of inactivity for dismissal under SDCL 15-6-41(b), Eischens attempt to distinguish Storm v. Durr, 2003 SD 6, 657 NW2d 34, Jenco, Inc., 2003 SD 79, 666 NW2d 763 and Schwartz v. Palachuk, 1999 SD 100, 597 NW2d 442, where the defendants' motions for dismissal was granted with shorter periods of delay. Eischens argue that the dismissals in these cases were granted because the plaintiffs disregarded or otherwise failed to follow a court order. Consequently, they aver that these cases do not support the dismissal in the instant case since no court orders were violated. However, whether Eischens' interpretation of these cases is accurate is of no consequence since the record clearly reveals that they did in fact violate at least one court order. The stipulated scheduling order of July 21, 2002 required that discovery be completed by October 1, 2002. However, due to repeated postponements by Eischens, the Township was unable to obtain Paul Eischen's deposition until November 27, 2002.10

[26.] Finally, Eischens argue that in any event the Township is not entitled to a dismissal for failure to prosecute under SDCL 15-6-41(b) because there was no prejudice to them by virtue of the delay in prosecution. However, a defendant need not demonstrate prejudice to obtain a dismissal under SDCL 15-6-41(b). Jenco, Inc., 2003 SD 79, 22, 666 NW2d at 768. Still, prejudice may be considered as a factor in determining whether to grant the motion. Moore v. Michelin Tire Co., Inc., 1999 SD 152, 52, 603 NW2d 513, 526 (citing Duncan, 382 NW2d at 427).

[27.] The circuit court's decision to dismiss Eischens' claim was not based on prejudice to the Township. Rather, it concluded that the manner in which Eischens pursued their claim lacked due diligence and exhibited an egregious, unexplained and unreasonable failure to proceed with promptitude. Nevertheless, as the Township correctly points out, to the extent prejudice to the defendant is a factor, it favors the Township in this case. The Volunteer Fire Department disbanded in July 2004, during Eischens' 18-month period of inactivity between February 2004 and August 2005. As a volunteer organization, its membership would change under normal circumstances as time passed. Thus, many who were present as firefighters on November 10, 1998 likely scattered. Were the Township required to continue to defend the litigation, the fact that the membership role was likely fluid, notwithstanding the fact that the Volunteer Fire Department ceased to exist, would
to file a brief, the hearing was again rescheduled to September 29, 2003. After plaintiffs' counsel was unable to file a responsive brief in advance of that date, the circuit court entered an order continuing the hearing on the motion for summary judgment until November 12, 2003.

[28.] On remand the circuit court entered extensive findings of fact consistent with the record, including defense counsel's affidavit with documentary exhibits supporting the Township's motion to dismiss. The circuit court thereafter concluded that Eischens had the burden to advance the litigation; that they failed to do so with due diligence and reasonable promptitude; that Eischens were responsible for the delays; that the Township was in no way responsible, and that the delays were unreasonable, unexplained and egregious. Based on our review of the record we find no basis upon which to overturn the circuit court's order granting the Township's motion to dismiss. Since the January 8, 2007 judgment entered on the dismissal constitutes a final adjudication on the merits, we need not consider the second issue raised by Eischens.

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